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13 June 2018

What Is All This Racket? R.I.C.O.

It's time to learn a new thing. I suspect this thing is going to loom large in the public arena in the near future. What is this thing, you ask? It's called RICO.

RICO stands for Racketeer Influenced and Corrupt Organizations Act. It is a federal law—meaning that it governs the whole country and not just one state—and can be found in the U.S. Code at 18 U.S.C. §§ 1961-1968.

Essentially, what RICO does is criminalize organized crime. It gives federal prosecutors—U.S. Attorneys in the various federal districts and the Dept. of Justice—a tool to use against criminal organizations such as the mafia and gangs and cartels.

What is 'Racketeering'? you might ask. Racketeering includes a broad array of criminal activities including, but not limited to: murder, rape, kidnapping, gambling, prostitution, arson, robbery, bribery, extortion, blackmail, fraud, obstruction of law enforcement or justice, abuses of the legal system (for example, to retaliate against whistleblowers), abuse of political office, witness tampering, forgery, and human or drug trafficking.

But if someone gets caught, say, extorting protection payments from a local bakery, why not simply prosecute them for that crime in the local court system? That's a good question. RICO provides at least two additional measures to deal with this sort of crime. First, the low-level hoods who are threatening the baker's livelihood might not be acting on their own. They might be reporting and funneling money up the chain to lieutenants who report to their captains who report to their bosses and so on as part of a larger organization or enterprise. RICO allows prosecutors to go after the upper level bosses who may, in the immortal words of Godfather 2, have "a lot of buffers" to protect them. It also allows them to break up these organizations.

Second, RICO makes this enterprise a FEDERAL crime. Many times, local police and prosecutors may not have either the resources or the political will to challenge a criminal organization. For example, to continue the Godfather analogy, the bosses may have local judges and police and politicians "in their pockets," making state or local prosecutions difficult, if not impossible.

RICO goes after the criminal organization or enterprise. To bring a criminal RICO case, a prosecutor must allege that defendants conducted or participated in an enterprise through a pattern of racketeering activity. This has been held to include four distinct elements: 1) The existence of an enterprise or an organization whose actions impact interstate commerce; 2) The defendants were employed by or otherwise associated with this enterprise; 3) The defendants participated, either directly or indirectly, in the conduct of the affairs of the enterprise; and 4) The defendants engaged in a "pattern" of racketeering activity (see above), that is to say at least two enumerated racketeering acts.

Remember: we're talking about criminal RICO here. There is also what's called civil RICO, a case that can be brought by victims of the racketeer. Donald J. Trump settled charges of civil RICO for $25 million dollars in the case of Trump University in 2016.

One of the big advantages of criminal RICO is its severe, some would say draconian, penalties. If found guilty of racketeering, a defendant faces fines up to $25,000 and incarceration of up to 20 years for EACH count. Not only that, a convicted racketeer must forfeit all ill-gotten gains and interest in any business gained through this pattern of racketeering activity. Victims of racketeering activity are entitled to treble damages—that is to say, damages three times the actual amount of proven actual damage.

To give you an idea of what sort of enterprises have been charged under RICO, Wikipedia lists a number of famous cases: Hells Angels, Catholic dioceses, the Louisiana Commissioner of Agriculture and Forestry, Key West Police Dept., Michael Milken, Major League Baseball, Pro-Life activists, LAPD, Al Qaeda, Mohawk Industries, the Latin Kings, Gambino crime family, Lucchese crime family, the Chicago Outfit, Pennsylvania state judges Michael Conahan and Mark Ciavarella, lawyer Scott W. Rothstein, AccessHealthSource, FIFA, and Connecticut Senator Len Fasano. There are many others.

As I say, expect to hear a lot more about RICO in the coming weeks and months. Watch for it.